A.D. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 24 November 2015
• Neutral Citation: [2015] IEHC 779
• Docket Number: [2011 No. 1058 J.R.]
• Court: High Court
• Date: 24 November 2015

[2015] IEHC 779

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2011 No. 1058 J.R.]

BETWEEN

A.D.

R. D. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND A. D.) AND E. D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A. D.)

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – Art. 3 of the Convention on the Rights on the Child – Fear of persecution – Appeal against the decision of the Refugee Appeals Tribunal – Papers-only appeal – Judicial review – Certiorari

Facts: The first named applicant, being the mother of the other two minor applicants, sought an order of certiorari against the decision of the first named respondent affirming the decision of the Refugee Applications Commissioner that the applicants should not be declared refugees. The first named respondent contended that the claim of the first named applicant could not be sustained on three grounds: delay in filing of the asylum application, availability of psychiatric treatment facilities in the country of origin and fear of rape being the subjective fear of criminality with no Convention nexus. The first named applicant contended that the first named respondent should have exercised extreme care as it was a papers-only appeal and the delay in filing the asylum application would not go to the core claim of the first named applicant.

Ms. Justice Faherty refused to grant leave to apply for an order of certiorari to the applicants. The Court held that the first named respondent had not breached the standard of extreme care in papers-only appeal in relation to the first named applicant, who suffered from a psychiatric illness. The Court in consonance with the findings of the first named respondent held that the first named applicant being a well-educated female possessed sound mental faculties, notwithstanding the seizures that she suffered in the past. The Court opined that there was no obligation on the first named respondent to independently ascertain the claim of the minor applicants in cases where no separate ground of fear of persecution of the minors had been asserted. The Court held that the first named applicant should have advanced independent claims of the minor applicants before the Refugee Applications Commissioner for an effective remedy.

JUDGMENT of Ms. Justice Faherty delivered on the 24th day of November 2015,

1 This is a telescoped hearing seeking certiorari of the decision of the Refugee Appeals Tribunal which affirmed the decision of the Refugee Applications Commissioner that the applicants not be declared refugees.

2 The first named applicant (hereinafter ‘the applicant’) is a Nigerian national who arrived in Ireland on a visitor's visa for the purpose of visiting her sister. She arrived in the state on 29th April, 2007 and had permission to remain until 29th July, 2007. Her intention was to return to Nigeria following her visit. The first named applicant suffers from Bi-polar Affective Disorder. She had a relapse while in Ireland resulting in treatment in this state in or about July or August 2007.

3 The second and third named applicants (hereinafter ‘the minor applicants’) were born respectively on 20th May, 2008 and 25th May, 2010 in this state. According to the applicant, the last contact she had with the minor applicants' father was in or about 2009.

4 In November 2008, the applicant applied via her then solicitor seeking a renewal of her ‘permission to stay in the state beyond the period already granted to her’. In the course of the said application, the Minister was advised of the applicant's mental health needs and of the birth of the elder of the minor applicants.

5 In April 2009, the Irish Naturalisation and Immigration Service informed the applicant, inter alia, that her application had been refused and that her permission to remain in the state had expired. Deportation orders were made in respect of the applicants in June 2011.

6 An application for asylum in respect of the applicant commenced on 18th August, 2011. The minor applicants were included in the application. The ASY1 form records the s. 8 interview with the applicant and noted:

‘Applicant states she arrived in 2007 to Ireland on a visit visa. Applicant states her sister supported her and that she lived with her sister. Applicant states that she made some money selling Avon products door to door.

Applicant states she is seeking asylum because she suffers from a mental disorder which causes her to have seizures. Applicant states a number of times in Nigeria when walking around she suffered these seizures and was raped. Applicant states she fears if she returns to Nigeria she will have a seizure and be raped again. Applicant states that since she arrived in Ireland she has had only one seizure and none since taking medication she receives here. Applicant states the medication in Nigeria is no good for her and she responds better to the medication she receives in Ireland.’

7 The applicant completed a questionnaire on 20th August, 2011. In the course of her s.11 interview she stated that she was first diagnosed with Bi-polar Affective Disorder in 1998 and that she regularly attended a named psychiatric hospital in Nigeria. She recounted that when incapacitated by the seizures she was raped ‘about four to five times’ and on one occasion sustained a beating when sister brought her to a church for prayers. She did not report the rapes or assault to the police and explained:-

‘they wouldn't even consider Bi-polar as a medical issue. They see me on the road and they know me. They will say there is the mad lady…. All in my mind is that it is a shame to let people know you have been raped. They will treat you as an outcast…… They will relegate you to the background they don't want to associate with you…. Even in the hospital I was tied to the bed with chains…. They treat you as an outcast when you have been raped or when you have this bi-polar disorder. They don't count this as a medical condition, they see it as possessive as if somebody has a demon.’

The applicant expressed her fears for the future in the following terms:-

‘I don't want to be tortured and be raped any more. I am scared of having AIDS If someone rapes me like that and they have HIV and transfer it to me that could mean death to me and my children will suffer…. If I have seizures, I would not have contact for them [her children] while I am in hospital.’

and

‘I just don't want to be killed and die young……My children, they won't have a mother anymore if such a thing happens to me now. They are still very young’

With respect to the possibility of procuring medication in Nigeria, the applicant stated: ‘You have to be very rich to be treated in Nigeria and the side effects were just unbearable.’

8 The commissioner's report, dated 8th September, 2011 issued on 30th September, 2011.

9 In summary, they key findings were as follows:-

• The Commissioner noted that the applicant had legal representation since at least November 2008 and that her sister with whom she lived for the majority of her four years in Ireland had applied for asylum in the state several years ago. In the circumstances, it was not accepted that the applicant was unaware of or could not find out about her option to claim asylum during the four years she was in the state and she thus failed to provide a reasonable explanation for the lengthy delay in applying for asylum;

• Despite the applicant's sense of interaction with the psychiatric services in Lagos for almost a decade, she claimed to be unable to furnish ORAC with any medical documents from Nigeria;

• The applicant's claimed education, work experience and engagement with the Nigerian state in terms of her youth service ‘cast doubts in relation to the severity of her state of discrimination due to her medical condition’;

• The applicant's subjective fears were based on her not receiving the correct medical care in Nigeria;

• The authorities in Nigeria were not an opportunity to respond to the alleged problems and thus the applicant had not proven a lack of state protection in Nigeria;

• As there appeared to be 35 psychiatric hospitals in Nigeria, it was asserted that internal relocation was an option for the applicant and that she could relocate in Nigeria and seek employment to support her and her children, particularly given her level of education and work experience;

• The Commissioner found that ‘an applicant must demonstrate a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant's claim is primarily based on her medical condition and the fear of crime i.e. rape. Therefore there is no nexus to s. 2 grounds in this case’.

10 The s. 13 report concluded with a finding that s. 13 (6) (c) of the Refugee Act, 1996, as amended applied to the application; ‘that the applicant without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the state.’

11 A Form 2 Notice of Appeal was submitted on 5th October, 2011. The grounds of appeal asserted that the applicant had a well founded fear of persecution on grounds of ‘membership of a particular social group’ and it was asserted that the Commissioner erred in the assessment of internal relocation and in finding that state protection was available for the applicant. With regard to the latter, it was asserted that country of origin information demonstrated that state protection was ‘woefully inadequate’. It was further asserted that the Commissioner erred in failing to properly assess available country of origin information on persons with mental health issues in Nigeria and the appeal grounds alleged human...